EI INCUMBIT PROBATION QUI DICIT.Proof lies on him who asserts, not on him who denies. The concept is that
one is innocent until proven guilty. Regardless of what the law says about
reasonable doubt, there is an unwritten presumption within the ranks of
the military that if you are charged with sexual assault, then you are
guilty. The stakes are your life! Your military counsel works for the
same military that charged you. Consider that as you choose who represents
you in your potentially life altering case.

Article 134 - Child Endangerment

Service members who endanger the safety, welfare and/or the physical and
mental health of a child aged 16 years or below, who they had a duty to
take care of, through design or a culpably negligent act such that the
said child suffers grievous bodily harm, or harm are violating the Article
134. Under this article, persons committing this offense shall be punished
as directed by the court martial.

Note that to endanger means to expose an individual to a reasonable probability
of harm and to do something by design means to something on purpose, or
intentionally.

For declaring the accused as guilty, the following elements are to be proven:

The accused actually had a "duty to care" for the child, the
alleged victim

The alleged victim was aged less than 16 years

The accused had endangered the safety, welfare and physical and mental
health of the child by design, or by a culpably negligent act

The actions of the accused had resulted in harm or serious bodily harm
to the child

The conduct of the accused, under the given circumstances, was meant to
bring into disrepute the armed forces or was to disturb the good order
and discipline in a community of the armed forces

Situations when accused can get punishment

A person accused of endangering the health, safety and welfare of the child
shall be punishable only if he had a "duty of care" towards
the alleged victim. Duty of care can be established by a legal parent-child
relationship, regulation, statute, assumption of custody or control of
the child through an affirmative act, or by mutual agreement and it is
determined by taking into account the totality of the situation. So if
the accused does not have a duty to care for the child, there is no offense
under this article.

For instance, if a stranger, like a neighbor who is not charged with the
duty of care, does not offer food to a starving or hungry child or does
not stop him from running around and playing in the street, it is not
an offense.

To be guilty of the offense, the accused should have committed culpably
negligent acts that are more than just simple acts of negligence. Under
this article, culpable negligence constitutes of conduct with a serious
disregard for the foreseeable harm, based on human experience, that the
acts of the accused may cause to the child. The age and the maturity levels
of the child, the environment, the conditions of place and its surroundings,
and proximity of available assistance from where the child has been left
are also taken into consideration for determining culpable negligence.

For instance, leaving a teenager unattended at home for an evening may
not be culpable or even simple negligence. But leaving a toddler or infant
unattended for the alleged period is considered as culpable negligence.

Note - It is important to note that actual harm to the child, physical or mental,
is not required to charge a person under this article. It is considered
as child endangerment even if the actions of the accused
could have resulted in physical or mental suffering or harm to the child.

Maximum punishment

The accused person will be subject to a maximum punishment of no more than
8 years for intentionally causing serious bodily harm to the child, and
no more than 5 years if offense results in harm. Grievous bodily harm
caused to the child, due to culpable negligence on part of the accused
shall attract maximum confinement of 3 years, while harm caused due to
culpable negligence attracts no more than 2 years of confinement.

Again, it is essential to note that it is an offense under the punitive
Article 134 only if the accused had violated the duty of care.

The information on this website is for general information purposes only.
Nothing on this site should be taken as legal advice for any individual
case or situation. This information is not intended to create, and receipt
or viewing does not constitute, an attorney-client relationship.